The
relators, an engineer and his engineering firm, seek
supervisory review of the denial of their motion for summary
judgment filed with the Louisiana Ethics Adjudicatory Board.
Concluding that the relators' remedy is not a supervisory
writ, but an appeal as directed in La. R.S. 42:1142, we grant
the writ for the limited purpose of remanding this matter to
the Louisiana Ethics Adjudicatory Board with instruction to
grant relators an appeal.

PERTINENT
FACTS AND PROCEDURAL HISTORY

In
November 2015 the Louisiana Board of Ethics (Ethics Board)
voted to file charges against the relators, C.J. Savoie
Consulting Engineers, Inc. and Clarence Savoie, II (sometimes
collectively, Savoie Engineers), with the Louisiana Ethics
Adjudicatory Board (EAB), the administrative body charged
with conducting a hearing on the charges. The Ethics Board
charged that Savoie Engineers violated conflict of interest
laws while serving as Parish Engineer for St. John the
Baptist Parish (sometimes, St. John Parish). Particularly,
the Ethics Board charged that Savoie Engineers violated La.
R.S. 42:1112(A) and La. R.S. 42:1113(A)(1)(a)[1] in that Savoie
was a "public employee" as defined in La. R.S.
42:1102(18).[2]

In June
2016 Savoie Engineers filed a "Motion and Memorandum in
Support of a Summary Judgment" as allowed under
Louisiana Administrative Code (LAC) § 52:1.1102 as a
prehearing motion in the proceeding begun by the Ethics
Board.[3]Primarily, Savoie Engineers alleged that
they are not public employees and that they were an
independent contractor working under contracts for
professional services. The Ethics Board opposed the motion.

The
motion for summary judgment came for hearing before the EAB
on August 4, 2016. The EAB took the motion under advisement,
and in November 2016, the EAB rendered and transmitted a
written "Order Denying Motion for Summary
Judgment."

On
November 29, Savoie Engineers timely filed a notice of intent
to file supervisory writs. The EAB set a return date of
January 20, 2017. Savoie Engineers timely filed their writ
application in which they raise three assignments of error:

1. The EAB erred as a matter of law when it held that the
[Ethics Board's] conclusory evidence contradicted
Savoie's affidavit evidence that certain services
provided by Savoie to St. John Parish are not
"governmental functions" that St. John Parish is
required by law to provide for the benefit of the public.

2. The EAB erred as a matter of law when it held that the
[Ethics Board's] conclusory evidence contradicted
Savoie's affidavit evidence that Savoie did not provide
professional engineering services under the "supervision
or authority" of elected officials or other employees of
St. John Parish.

3. The EAB erred as a matter of law when it held that the
[Ethics Board's] conclusory evidence contradicted
Savoie's affidavit evidence that Savoie did not perform
"governmental functions" that the Public Bid Law
requires St. John Parish to perform for the benefit of the
public.

DISCUSSION

Appellate
courts have the duty to examine subject matter jurisdiction
sua sponte, even when the parties do not raise the
issue. McGehee v. City/Parish of East Baton Rouge,
00-1058 (La.App. 1 Cir. 9/12/01), 809 So.2d 258, 260. Here,
both parties argue that the Louisiana Code of Civil Procedure
governs the review of the motion for summary judgment at
issue. EAB decisions are reviewed in accordance with the
Louisiana Administrative Procedure Act (LAP A). "The LAP
A was not intended to supersede the more specific provisions
of other administrative acts[.]" Metro Riverboat
Associates, Inc. v. Louisiana Gaming Control Bd.,
01-0185 (La. 10/16/01), 797 So.2d 656, 662; Corbello v.
Sutton,446 So.2d 301, 303 (La. 1984). "Rather, it
was intended to create procedures in those instances where
none exist." Metro Riverboat, 797 So.2d at 662.

However,
Part III of Chapter 15 of Title 42 of the Louisiana general
statutes, La. R.S. 42:1132 et seq., the Code of
Governmental Ethics, set out the specific provisions that
govern the Ethics Board and the EAB. Particularly, La. R.S.
42:1142, entitled "Appeals, " governs review of
actions taken by the EAB. This statute was amended by Acts
2012, No. 607, § 1, eff. June 7, 2012, to provide, in
pertinent part, as follows:

A. (1) Whenever action is taken against any public servant or
person by order of the Board of Ethics, or panel thereof, or
by a final decision of the Ethics Adjudicatory Board, or by
an agency head by order of the Board of Ethics, or panel
thereof, or by a final decision of the Ethics Adjudicatory
Board, or whenever any public servant or person is aggrieved
by any action taken by the Board of Ethics, or panel
thereof, or the Ethics Adjudicatory Board, he may
appeal to the Court of Appeal, First Circuit.
(Emphasis added.)

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